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POINT Beyond Oliphant: Strengthening Criminal Justice in Indian Country By Hon. Troy A. Eid Violent crime continues to take a mas- sive toll on Native Americans—to the point that more than one-third of Indian women will be raped during their life- times. Many Indian reservations suffer from a chronic lack of basic criminal jus- tice services. Strengthening public safety means reassessing decisions by the U.S. Supreme Court that limit tribes from fight- ing crime. This includes revisiting the Court’s decision in Oliphant v. Suquamish Tribe, which prevents tribes from asserting criminal jurisdiction over non-Indians, in order to bring more criminal justice resources to Indian country. Introduction: Tragedy at Towaoc ew of the half-million tourists who visit Mesa Verde National Park in southwestern Colorado each year Fwould suspect that the nearby village of Towaoc is the murder capital of Colorado. Vacationing motorists might mistake this picturesque village (pronounced TOY’awk), nestled below Sleeping Ute Mountain—resem- bling a stone giant sprawled lazily on his back with arms folded across his chest—as a place of tranquility amid the vast landscape of the Four Corners area, where Arizona, Colorado, New Mexico, and Utah meet. Yet everyday life in Towaoc, capital of the 2,000-mem- ber Ute Mountain Ute Tribe, is filled with violence, fear, and despair. Last year alone, five people were murdered on the Ute Mountain Ute Reservation. A sixth unexplained death is still being investigated, along with at least two prior unsolved homicides. At a time when the United States, outside of Indian country, has generally experi- Three Rivers Petroglyphs Site, New Mexico. enced steady or even declining incidents of violent crime, Photo by Lawrence Baca. the murder rate on Ute Mountain is at least 20 times Col- orado’s state average. ficers. This creatively desperate attempt at self-help proved Ute Mountain has become a haven for all kinds of crim- dangerous when one or more snipers, tracking the civilian inals—Indian and non-Indian alike—who confront a capa- patrols’ movements with police radio scanners, began fir- ble but chronically short-staffed law enforcement pres- ing at the civilian patrols with high-powered rifles. Without ence. Only five police officers—all from the U.S. Depart- enough trained patrol officers and investigators in the ment of the Interior’s Bureau of Indian Affairs (BIA)—pa- field, crime scenes on Ute Mountain are often compro- trol a reservation about the size of Rhode Island. Some- mised, critical evidence is destroyed, and witnesses disap- times just one BIA police officer is available on call, result- pear. BIA police chiefs at Towaoc have routinely served ing in response times of more than one hour.1 Unarmed tours of duty of no more than 120 days—and sometimes groups of tribal employees were recently assembled into just one month—before being rotated by BIA to work on civilian patrols to serve as extra “eyes and ears” for BIA of- other Indian reservations throughout the American West. March/April 2007 | The Federal Lawyer | 1 COUNTERPOINT Promoting Tribal Self-Determination in a Post-Oliphant World: An Alternative Road Map By Elizabeth Ann Kronk roy Eid’s article, “Beyond Oliphant: Strengthening relief from tribal court decisions would not be sufficient Criminal Justice in Indian Country,” is an insightful without the conditions he proposes. The reality of prac- Tcommentary on a significant problem in Indian coun- tice, however, seems to suggest otherwise, as very few try: the jurisdictional and law enforcement quagmire cre- habeas petitions from tribal court convictions are filed ated by the Supreme Court’s 1978 decision in Oliphant v. every year. According to Professor Matthew L. M. Fletcher, Suquamish Indian Tribe, 435 U.S. 191, holding that tribes in the past 39 years, there has been less than one petition do not have criminal jurisdiction over non-Indians. Eid’s per year for habeas review of a tribal court decision. article portrays some of the problems faced by law en- Moreover, the executive and legislative branches of the forcement in addressing the unacceptably high rate of federal government support tribal self-determination. On crime in Indian country and accordingly calls for a con- Sept. 23, 2004, President George W. Bush released a mem- gressional repeal of Oliphant. Whereas I agree with Eid orandum articulating the administration’s commitment to that a congressional repeal of Oliphant is long overdue the policy of tribal self-determination.1 The President’s and would go a long way toward addressing the milieu of memorandum was merely the reiteration of a long-stand- Oliphant-related problems in Indian country, I disagree ing federal government policy of respecting tribal sover- with his proposed solution, which conditions repeal of eignty and promoting tribal self-determination. Further- Oliphant on requirements that would apply Western more, congressional legislation has consistently supported norms of criminal justice on tribal courts. I offer this com- and articulated the policy of tribal self-determination.2 mentary to further the discussion Troy Eid has started. Troy Eid’s proposed remedy also runs afoul of the prin- Rather than conditioning the repeal of Oliphant on ciples of cooperation and mutual respect that were articu- making tribal courts adopt certain measures, a post- lated at the Federal Bar Association’s 31st Annual Indian Oliphant discussion should begin with a consideration of Law Conference held in Albuquerque, N.M., on April 7, tribal self-determination. Currently, tribes live with alien 2006. At the conference, Christopher Chaney, deputy direc- Western criminal justice norms that reflect the value judg- tor of the Office of Law Enforcement Services at the Bureau ments of an invasive, dominant society and do not con- of Indian Affairs; Matthew Mead, U.S. attorney for the Dis- sider tribal values of justice. Value judgments as to how trict of Wyoming; and Willie Noseep, a member of the East- tribal courts must operate and conditions on tribal juris- ern Shoshone Business Council, discussed how federal diction over non-Indians are contrary to meaningful sov- government, state and local officials, and tribes worked co- ereignty and self-determination. operatively to dismantle substantial drug trafficking organi- It is useful to begin with a fundamental premise: Juris- zations. (See the discussion of Jesus Sagaste-Cruz in the ac- diction over non-Indians is an inherent right possessed by companying case study on the use of methamphetamines tribes before their first contact with Europeans, removed in Indian country.) Successes, such as those presented at only through the policy changes made by the Supreme the recent Indian Law Conference, show that tribal govern- Court since 1978. The congressional intent behind the In- ments can work cooperatively with outside law enforce- dian Civil Rights Act of 1968 was to allow tribes to devel- ment officials without the need to apply Western norms of op their own justice systems with the minimum baseline criminal justice to tribes in a unilateral manner. of civil rights imposed by the act. Therefore, tribal juris- Accordingly, given the federal government’s policy of diction over non-Indians is not an increase of tribal pow- promoting tribal self-determination, suggestions—such as er, but is rather a removal of a constraint created by the those made by Eid requiring tribes to conform to Western Supreme Court on a power that existed before the forma- norms of criminal justice—are misplaced. Congress has tion of the United States. In addition, given the restrictions recognized that the policy of tribal self-determination has of federal statutes such as the Major Crimes Act, tribes been successful in promoting progress in Indian country.3 would still have jurisdiction only in mostly misdemeanor Therefore, it would not seem prudent to abandon this matters, as a result of a congressional repeal of Oliphant. policy now. Also, some tribes have, as a sovereign and A congressional repeal of Oliphant without conditions selective choice, taken steps to address some of the con- or waivers of sovereign immunity is consistent with self- cerns raised by Eid; therefore, a conditional repeal of determination. A long-term solution to the problems laid Oliphant is not necessary. For example, § 7 of the Navajo out in Eid’s article involves more than transforming tribal Nation’s Bill of Rights guarantees the right to counsel, courts into agents of state and federal courts. Congress in- which has been recognized by the Navajo Supreme tended for tribal courts to develop their own systems, re- Court.4 In fact, many tribal courts require more protec- strained by a minimum of civil rights, when it passed the tions from criminal procedures than federal or state courts Indian Civil Rights Act. Unacceptable errors can be cor- ever did.5 Tribal judges have traditionally been more em- rected by habeas review. Eid suggests that habeas corpus pathetic to defendants and have understood what works March/April 2007 | The Federal Lawyer | 2 In recent years, the tribal court in Towaoc, also run by half as many police officers per capita as similarly situated the BIA on a contract basis, has functioned only sporadi- rural communities.7 This disparity has shrunk on several cally. Aside from preventing the enforcement of misde- reservations thanks to a combination of increased tribal meanor laws under the tribal code, this lack of continuity funding and targeted financial and technical aid from the causes violent crimes to go unpunished under federal law, Justice Department, the BIA, and other federal agencies. because potential witnesses cannot be detained locally Yet on Ute Mountain and in many other communities, while investigations are completed and federal charges are the gap stubbornly persists. Last year, the BIA hired a pri- filed.

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